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Supreme Court to address Indian Child Welfare Act

On Behalf of | Nov 11, 2022 | Family Law |

Doubt and apprehension comprise a significant part of every adoption. In almost all cases, state courts resolve these and the related legal issues by balancing relevant economic, social and psychological factors.

An upcoming decision by the Supreme Court– expected in Spring 2023 – will attempt to resolve a unique set of competing legal interests: culture and federal law versus the best interests of the child.

Significance of culture and heritage in Native American adoption

In June 2016, a white couple in Texas welcomed a 9-month-old boy into their home as a foster child. State adoption officials told the couple the child, whose biological parents were Navajo and Cherokee, would remain with them for a few months.

The couple sought formal adoption a year later, but Navajo Nation social workers insisted the child go to an unrelated tribal couple from Arizona. Ultimately, the Navajo Nation tribal officials approved the adoption on January 8, 2018.

When the child’s biological mother gave birth to a half-sister, the couple filed for custody. Navajo Nation wanted custody for the child’s great-aunt. A Texas judge granted the couple primary custody, but required they bring the girl to a Navajo reservation for extended visits. Both sides appealed, prompting a new trial order from a state appellate court.

Lawsuit claims ICWA violates Equal Protection Clause

The couple’s lawsuit challenges the constitutionality of the Indian Child Welfare Act (ICWA). Passed in 1978, the law prioritizes placing of Native American children in adoptive homes with tribal relatives. The couple contends that ICWA violates the Equal Protection Clause of the Fourteenth Amendment. Twenty-three state attorneys general have filed briefs in support of ICWA.         

The impending ruling could affect millions of indigenous people. According to the U.S. Census Bureau, 574 federally recognized tribes comprise nearly 3% of the U.S. population. More than 500 of those tribes want the Supreme Court to uphold ICWA. In Mississippi, the federal government recognizes the Mississippi Band of Choctaw. The tribe occupies 35,000 acres over 10 counties.

Understanding the issues that matter

Regardless of the underlying circumstances, an adoption demands attention to detail. Specific procedures reflect the how the process prioritizes consideration of the long-term best interests of multiple parties, most especially the child. An attorney familiar with the process can offer guidance.